You know... I voted against the gay marriage ban when it was on the ballot, but this really ticks me off.

We have a referendum process in the State of California. It is time consuming and expensive. The voters by a majority decided to bring a referendum to ballot and it passes by a majority. IF the referendum or proposition was unconstitutional to begin with why did we spend all this time and money in the first place?? What a freaking waste of time and money.

This also isn't the first time the the California Supreme Court has reversed the will of the people or the legislature going around the backs of the public to invalidate the referendum process. As now with Arnie trying to confiscate gas tax money that was earmarked by propositions to be dedicated to roads and not be diverted into the general fund.

It's no wonder that people don't trust the government when your votes are subverted and overturned.

Well, there goes Ca. Chief Justice Ronald George's shot at the Supreme Court. President McCain could've gotten him through Congress easily. Now he'll spend the rest of his judicial career as the far-right's voodoo doll.

Meanwhile, Thomas Frank; got new voice mails from his publisher, his agent and Nancy Pelosi.

This is obviously a good decision from a legal and civil rights perspective. But it's hard to overlook the political fact that a gay-marriage ban ballot initiative won by an enormous margin just 10 years ago, and would probably win now. California voters can amend the state constitution. IIRC, the only difference between a voter initiative and a voter constitutional amendment is the signature threshold is higher. So this battle will continue and will likely end up with a voter-approved same-sex marriage ban in the state's constitution.

This also isn't the first time the California Supreme Court has reversed the will of the people or the legislature going around the backs of the public to invalidate the referendum process..

Rule of Law trumps Will of the People. Conservatives have been hoping the SCOTUS would bail out their issues ... ain't gonna happen. Not on banning abortion and not on gay marriage, no matter how many "conservative" judges are seated. Constitutional amendment is their only hope.

You all seem to assume that a Constitutional amendment would pass because the first initiative passed.

In 2006, we had a gay marriage ban on the ballot here in Arizona, and it failed. That's right, it lost.

After the initial visceral anti-gay reaction, people are starting to think a lot harder about whether they want to pass a law (or a constitutional amendment for that matter) that makes life harder for other people without directly affecting their own lives.

Gay marriage initiatives were a slam-dunk with overwhelming support almost everywhere ten years ago, but now they arouse significant opposition as well as support, and especially among young people (who made the difference in a big way here in Arizona) they are seen as just another example of some people trying to use the law to push their own moral views on other people.

If there is a Constitutional amendment vote in California, then it may pass, but you may be surprised and find that it will fail. Even more so if Obama is the Democratic nominee and brings a lot of people under thirty to the polls.

I also doubt that a constitutional amendment banning gay marriage would pass in California. I would vote against it mainly because I'm opposed to monkeying with any constitution for fringe issues and for the cause d'jour.

To me the constitituion, as a concept, is to lay down broad sweeping rules and not to be changed frivilously.

Gay rights advocates would be smarter to go with small steps such as pushing for "civil unions" in the legislature first. An un democratic decision by the courts will only energize the opposition into writing the ban into the constitution. The end result of this will be a state constitutional amendment banning gay marriage.

"You know... I voted against the gay marriage ban when it was on the ballot, but this really ticks me off.

We have a referendum process in the State of California. It is time consuming and expensive. The voters by a majority decided to bring a referendum to ballot and it passes by a majority. IF the referendum or proposition was unconstitutional to begin with why did we spend all this time and money in the first place?? What a freaking waste of time and money.

This also isn't the first time the the California Supreme Court has reversed the will of the people or the legislature going around the backs of the public to invalidate the referendum process. As now with Arnie trying to confiscate gas tax money that was earmarked by propositions to be dedicated to roads and not be diverted into the general fund.

It's no wonder that people don't trust the government when your votes are subverted and overturned."

I understand your point, but it's not like it's the job of the CA Supreme Court to issue advisory opinions on the constitutionality of a referendum before it has been challenged in the courts, let alone before it has even been passed.

The "will of the people" doesn't matter when their will goes against the Constitution. I know this isn't your point, but from your post it almost seems as if you are arguing the court shouldn't overturn any referendum that is passed, regardless of its constitutionality.

Should gays that are married have equal rights to adopt children compared to heterosexuals that are married? It seems to me that if it is unconstitutional to ban gay marriage, then gays would not be truly married unless they have equal rights to adoption.

I think her point was it would have been cheaper to get a court decision before it went forward to the voters... not possible, but cheaper.

DBQ said...The proposition, which is just a law that was passed by referendum, was declared unconstitutional,

actually from my CA civics class 50 years ago, I would have said:

- initiative. the right of the voters to put on the ballot a proposed Law

- referdendum. the right of the voters to but on the ballor for a vote, on something already passed by the legislature. In this case, if the legislature had passed a law permitting Gay Marriage, then there might be a referendum to overturn or modify that law.

- recall. The right of the voters to throw the bum out. aka Davis

I am not going to research the CA constitution, but I think I'm right. Many Western states and I think Wisconsin have "progressive" constitutions modeled on the CA one.

If you have a child that needs to be adopted and you have two equally situated couples in every respect except one couple is two women, and one a man and a women (traditional couple), whose rights come first? Would it be the child's right to be adopted by a traditional couple, or the gay couple's right to be treated the same as the traditional couple.

If the child's rights come first, then how can the gay couple really be married, since being married implies they would be treated the same as the traditional couple.

At least there will always be words "gay marriage" and just "marriage". But let's see how fast that distinction can eliminated from the vernacular. Is that the ulitimate goal, erasure of grammatical distinction? or is it just equal protection under the law?

I suspect it is ultimately the elimination of any notion of "sin" attached with sodomy (as distinct from the legality, which is settled). Butt for that to happen, proponents will run into establishment clause issues.

There you go William, way to stick up for the tyranny of the majority and the status quo! Finally, someone who can bring conservatism back to its roots. Once we get social conformity nailed down, perhaps someone will get going on lowering (my) taxes.

He added that the decision "does not affect the constitutional validity of the existing prohibitions against polygamy and the marriage of close relatives."

Why it doesn't affect that validity of polygamy bans remains unexplained. It is probably in one of those penumbras somewhere.

My sense is that support for an amendment banning recognition of gay marriage would be pretty evenly split in California; there was solid majority support for one the last time the subject came up, but that was a while ago. Of course, this sort of thing tends to light a fire under the pro-ban folks.

I know this isn't your point, but from your post it almost seems as if you are arguing the court shouldn't overturn any referendum that is passed, regardless of its constitutionality.

No, my point is that if an initiatave is known to be unconstitutional or is very likely to be challenged as unconstitutional, to put it on the ballot is a huge waste of time and money. Even if it overwhelmingly passes by popular vote it will ultimately be challenged and we end up with pissed off voters who don't understand why everytime they vote for something it gets turned over or thrown out.

Waste of time to propose something you know has no chance of standing. One way is to change the constitution first, but as I stated I'm pretty much opposed to that when it is a specific issue by issue change.

Just cause they were appointed during GOP administrations doesn't make them Republican themselves.

And looking back in history, Earl Warren's Supreme Court was pretty liberal/progressive for its time (to the dismay of the President who appointed him), yet he was a GOP Governor, and even VP candidate, so judicial philosophy and party affiliation aren't always neatly aligned (especially here in CA).

And I didn't say marriage should be disregarded as a civil matter in jest. It's an archaic custom, civil recognition of marriage, and by-product of an age when women were chattel, children were cheap labor, and divorces were difficult to obtain.

I think any group of adults should be able to enter into a contract with each other that resembles marriage, and is recognized like marriage, but marriage itself should be based on the customs of the community, and not be civilly recognized.

Marriage is a sacrament to many people, a civil contract to many others, and that's where the friction comes, it's not like there's this much controversy over something like baptism (a sacrament with no civic repercussions).

Pensions for domestic partners, tax breaks, and all the other benefits that have accrued under the banner of marriage are clearly discriminatory towards adults who choose to stay single, and if you use discrimination as the basis for claiming that same sex marriages must be recognized, seems like the same logic applies to the argument that all marriages are discriminatory, and therefore should not be recognized civilly.

And other commenters are right that these were Republican justices. But just as there are three parties in Congress -- Republicans, Democrats, and Appropriators -- with the last one having a majority, there is one thing that Republican and Democratic lawyers all agree on and that is that lawyers should be in charge.

This is just the latest coup d'état by the legal class. Someone has to make the decision of whether a man can marry two women, or a man can marry his sister, or man can marry a man, or whether a 15 year old boy can marry a 15 year old girl, and so on. Even though the Constitution of California gives no guidance on any of these, the California Supreme Court has simply asserted "We get to decide these things. You don't."

I can't decide whether those who argue that this is anything but a pure power grab are dishonest or simply deluded.

Those positing that this decisions subverts the "will of the people," are woefully misinformed. As we're reminded by Glenzilla today:

'The people of California, through their representatives in the State legislature, twice approved a bill to provide for the inclusion of same-sex couples in their "marriage" laws, but both times, the bill was vetoed by California Gov. Arnold Schwarzenegger, who said when he vetoed it that he believed "it is up to the state Supreme Court" to decide the issue.'

Harsh pencil wrote: "Someone has to make the decision of whether a man can marry two women, or a man can marry his sister, or man can marry a man, or whether a 15 year old boy can marry a 15 year old girl, and so on. Even though the Constitution of California gives no guidance on any of these...."

Well, the Constitution doesn't but those of us who have read the actual decision know that the laws of California are very clear about family members marrying (no, they can't), whether bigamy is legal (it is not) and the age at which folks (even gay ones, now!) can marry (that's age 18).

Here's the actual decision, for those who actually want to argue based on facts, not bluster and ignorance: http://www.courtinfo.ca.gov/opinions/documents/S147999.PDF

'The people of California, through their representatives in the State legislature, twice approved a bill to provide for the inclusion of same-sex couples in their "marriage" laws, but both times, the bill was vetoed by California Gov. Arnold Schwarzenegger, who said when he vetoed it that he believed "it is up to the state Supreme Court" to decide the issue.'

And in 2000, 61% of the voters clearing voted against same sex marriage when they passed prop 22, which was overturned today.

and this fall they will vote on a constitutional change. DBQ, I understand your conservative position about not changing the constitution, but when judges read things into the constitution now that weren't put there 150 years ago, sometimes the people desire to make it a bit clearer and a bit harder for judges to create new rights

Those positing that this decisions subverts the "will of the people," are woefully misinformed

Woefully misinformed seems a very strong phrase for what you are describing.

"Arguably not as clear" seems better.It's not as clear because the governor too is an elected official, so is speaking for the people. And even more the people directly had a say. When put to a direct vote the people said one thing, thus making the representation moot. There was no need for a representative vote. It's like saying that because the state politicians are voting for a candidate for president they are expressing my choice.

They're not, because the matter is passed directly to the voter.

The people voted. The court overturned the people.

Even if this is a preferred policy, it's a bad way to go about it. There should be deference given to a popular vote, especially on a right that is very much not constitutionally clear. Something that is in direct violation to a direct constitutional statement should be overturned, but this is not one of those situations.

Well, the Constitution doesn't but those of us who have read the actual decision know that the laws of California are very clear about family members marrying (no, they can't), whether bigamy is legal (it is not) and the age at which folks (even gay ones, now!) can marry (that's age 18).

I think harsh pencil's point was that until today there also was a law that prohibited same sex marriage, till the court found an extra right implicit in the constiution. Why can't they next week find a roght to marry 7 wives, or one's sister or a sheep. any difference in judical reasoning required?

Huh? Of course the laws of California are clear about bigamy and so on. My point wasn't that these questions (whether a man could marry his sister, two women, or whether two 15 year olds could marry) hadn't been answered, but they were answered by laws passed by Legislature and signed by the Governor. So far the legal community has seen fit to allow the rest of us to decide these questions. Tomorrow, they may choose otherwise.In any event, our judicial overlords reserve to themselves the right to choose which questions they get to answer and which questions they deign the little people to decide.

Obviously those polygamist cults in Texas need to saddle up and head over to California. If the Court agrees it can't dictate who can marry whom then the step to approving polygamy is but a small one. Just because you can only juggle one partner doesn't mean I can't juggle several.

Drill Sgt. The court did not find an "extra right implicit in the constitution" -- they simply clarified the fact that under California's constitution, defining "marriage" as between a man and a woman was unconstitutional. The term "marriage" doesn't change... it's just made it legal for gay folk to take full advantage of the state benefits that accrue to married people. Another way to look at it (as the court did) is to say (and I'm hugely paraphrasing), we are not deciding on the issue of "same-sex marriage" we are deciding the issue of whether gays can be included in the existing marriage statute in California.

"[O]ur task in this proceeding is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership, but instead only to determine whether the difference in official names of the relationships violates the California Constitution."

That's it? It's unconstitutional for the State of California to have a different name for two guys in a legal relationship than the name it gives for a guy and a gal? The freakin legal name your relationship are given is a matter of a constitutional rights? Holy smokes this is ridiculous. The entire legal profession has lost its marbles.

Harsh Pencil -- before your head pops off, here's a simpler way to view it (and one that I hope will balm your worries about the legal profession)... From Leonard Link's blog:

"The court agreed with the plaintiffs that the correct way to characterize the fundamental right question is whether there is a fundamental right to marry from which same-sex couples are unconstitutionally excluded, rather than, as the state argued, whether there is a fundamental right to same-sex marriage."

Well, the Constitution doesn't but those of us who have read the actual decision know that the laws of California are very clear about family members marrying (no, they can't), whether bigamy is legal (it is not)

Up until today, the law was clear that gays couldn't marry. Now that the CSSC has said that gays can marry, what is to stop them from declaring that bigamy laws are unconstitutional, or that relatives can marry? It certainly isn't the voters.

Amending the Constitution is exactly the democratic remedy for laws being declared unConstitutional. It is the ultimate Will of the People trump card.

Unity in marriage always was and ever will be a state of mind. Marriage recognized by the State is a matter of property rights, a contract it is expected to adjudicate. Welcome, Homos to the wonderful world of divorce, and all that entails legally. From here on even your common law marriages will be recognized. That means you have only to live with someone for however long a period is required in your state, and all your property, the businesses you build yourselves, your inheritances, everything, will be up for grabs. I advised you to be careful what you wish for and you didn't listen. Very well then, carry on. And I mean all that in the most compassionate way imaginable.

If that's the basis for this decision this my layman's take is this emblematic of what happens when a profession is allowed to self-regulate. Just curious, does CA provide for popular election for its judges? And must the "Bar" provide its stamp of approval on all judges?

Sgt. Ted... I feel exactly the same way you do about marriage. I'm against it, in theory and practice. But as long as it's available as a constitutionally enshrined right (in California) to the geese/ganders, I believe it should be available to the gander/ganders and geese/geese, too. Apparently the Cali Supremes felt similarly.

Bob, you can check my numbers, but I think I read that all (or all but one) of these Supreme Court Justices were appointed by a GOP governor. California is known to be a very conservative court, which is what makes this ruling so incredible (and strangely wonderful). If right-wing judges can decide this way, I'm wondering what the actual "will of the people" in California is right now (as opposed to even a few years ago) ... guess we'll find out in November, huh?

Chip - after reading your post I see that the real logic the Justices used was money. They just expanded the "business of divorce" for their fellow lawyers. I'm thinking of this now as a sort of Economic Stimulus just for lawyers.

Polygamists can feel comfortable knowing their day will come because the lawyers can seperate them from their money. Farm animals, sorry but you're probably screwed because the you've got no assets to be had...

The people of California, through their representatives in the State legislature, twice approved a bill to provide for the inclusion of same-sex couples in their "marriage" laws

That's some remarkably dishonest wording. The legislature voted to overturn a proposition which had been passed by the people of California by a direct vote. It is obviously ridiculous to pretend that the legislature was carrying out the people's will in overturning the people's own proposition.

Furthermore, the legislature has no power to overrule propositions; both of the bills Schwarzenegger vetoed were patently illegal. The only things that can overrule a proposition are (a) the state or federal Supreme Courts, (b) federal law, or (c) another proposition. Exactly one of those represents the will of the people of California, and it ain't (a) or (b).

My fear is that this will now lead to the constitution being amended to prevent the courts from monkeying around with the law any further. That would be too bad, considering that we were probably only a few years away from another proposition extending marriage benefits to homosexuals.

IncandenzaH, my opinion cites my status as a voter in the state of California given a direct choice on this topic at hand, a topic not directly addressed by the Constitution of the state.

However I personally voted on this measure is besides the point, like DBQ has noted. That the court has decided to determine an issue is obvious. Of course they cited cases. They can't just make things up. However, deference for past cases relating to a newly determined issue within this referendum should not be given more deference than the direct expression of the people themselves.

The court frames the issue in the way that it could thus determine the issue in the way it sought. This goes against the will of the people who knew clearly what they were and what they were not voting for. We can think them wrong, but that's not the point.

The court knows this, and the court found a way around it. Even if someone finds this a favorable opinion this time, who knows what future judges might find that might not be considered as favorable.

The people have a way of asserting deference if pushed far enough. In a state that is now heavily Hispanic catholic, it will be interesting to see the push back in coming years and coming elections.

Paddy O... the will of the people (in California and elsewhere) at one time included denying mixed-race couples from marrying. That was also found unconstitutional and overturned. Are you saying there is no time when legislation can be overturned by the courts, based on constitutional law? If not, when is it appropriate, and when isn't it?

Does anyone know the text of the proposed California constitutional amendment?

I'm wondering about the legal status of gay couples who marry between the time this decision goes into effect and the time that the CA Constitution is amended to outlaw gay marriage (if it is, which is a big if). Would the amendment annul the marriage of any gay couple who was already married? Seeing the text of the proposed amendment would help.

As a lawyer, this decision strikes me as judicial activism, and improper as a matter of law. But my mom can finally get married to my step-mom. As a son (and a step-son), I'm thrilled. And being a son takes precedence over being a lawyer.

Yeah, that funny thing, the will of the people. I guess it didn't stop the courts in getting prop 187 overturned back then either. These types of judicial shenanigans only cement in the minds of the voters who voted and got these measures approved, is that their votes really don't count afterall.

November 2007LIMIT ON MARRIAGE. CONSTITUTIONAL AMENDMENT. Amends the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: The measure would have no fiscal effect on state or local governments. This is because there would be no change to the manner in which marriages are currently recognized by the state. (Initiative 07-0068.)

Alan, in response to your comment about judicial activism, I defer to another lawyer Glenn Greenwald, who writes:

"Polls have found substantial support for gay marriage in California, with dramatic trends toward favoring gay marriage. While there was a referendum passed in 2000 limiting marriage only to opposite-sex couples, five years later (in 2005), California's state legislature became the first in the country to enact a same-sex marriage law without a court order compelling them to do so. Thus, even leaving aside constitutional guarantees (which, in a constitutional republic, trump public opinion), today's ruling is consistent with that state's democratic processes and public opinion, not a subversion of it."

All this talk of the court subverting the "will of the people" and all I can say is...

Sometimes, the people are WRONG.

That's it? It's unconstitutional for the State of California to have a different name for two guys in a legal relationship than the name it gives for a guy and a gal?

How would you like it if you were a white person who was in a legal partnership with a black or asian or latino person and the state of California legally defined your relationship as a "Mixed Marriage." Or, how about a "Bi-Racial Marriage."

It's about entering into an agreement with the same dignity and recognition as everyone else.

Polls have found substantial support for gay marriage in California, with dramatic trends toward favoring gay marriage.

"Substantial" support.

"Dramatic trends" towards favoring.

Plain English translation: Minority support; majority opposition.

It is certainly true that the trend, in California and nationwide, is towards legal recognition of gay marriage. But Greenwald's post is nothing but sophistry aimed at sugarcoating the thwarting of democracy by pointing out that the people would probably have voted the right way, eventually.

While there was a referendum passed in 2000 limiting marriage only to opposite-sex couples, five years later (in 2005), California's state legislature became the first in the country to enact a same-sex marriage law without a court order compelling them to do so. Thus, even leaving aside constitutional guarantees (which, in a constitutional republic, trump public opinion), today's ruling is consistent with that state's democratic processes and public opinion, not a subversion of it."

You and Glenn apparently have never read the CA Constitution. The Initiative process is right up front as Article 2. Right after the Bill of rights. it says in part

(c) The Legislature may amend or repeal referendum statutes. Itmay amend or repeal an initiative statute by another statute thatbecomes effective only when approved by the electors unless theinitiative statute permits amendment or repeal without theirapproval.

Now the voters passed an initiative defining marriage. The Democratic Legislature tried to overturn that. The Governator apparently read the Constitution, unlike you or Glenn. No Initative passed by the voters can be modified by the Legislature WITHOUT sending it back to the voters for approval. Arnold knows that, you and Glenn can't read.

Revenant, you wrote: "...the people would probably have voted the right way, eventually."

But in the meantime, the court had to decide on a constitutional issue regarding marriage, or more people's rights would have been abridged in the interim. They have now done so. Doesn't that mean the system works?

But in the meantime, the court had to decide on a constitutional issue regarding marriage, or more people's rights would have been abridged in the interim. They have now done so. Doesn't that mean the system works?

If they were correct in believing that the California Constitution grants gay couples the right to marry (and that's a not implausible reading of it) then, sure, the system worked.

But it may still have been a bad move from a gay rights perspective. The last time a state Supreme Court decided to enact gay marriage from the bench, the backlash led to gay marriage being explicitly banned by constitutional amendment in numerous states. Now those states not only lack gay marriage, but will continue to do so for quite some time even after a majority of the people in those states begin to favor gay marriage. It takes a lot more effort to undo an amendment than it does to pass a law, in most states at least.

If the impact of this ruling is for California to ban gay marriage via amendment... well, that would be the system "working", too. But it wouldn't be anything to cheer about.

All Article 2 says is that a bill can't become effective until voters approve it through a mechanism of direct democracy. So the Governor could very well have signed the bill and instructed officers not to enforce it until it was approved by the California voters.

Et voila!

In this case, though, we're not even talking about that. We're talking about an unconstitutional reading of established California law that was righted today by the California Supreme Court. So let's keep eyes on the ball here, so as not to float off topic (easy when we talk law, isn't it?)

Revenant wrote "If they were correct in believing that the California Constitution grants gay couples the right to marry"... but let's just stop right there. That's not what today's ruling said, it said the Constitution doesn't proscribe same-sex couples from marrying in California. Your way, they would be writing new law; their way is basing their judicial findings firmly on constitutional law (i.e., since marriage is a right enshrined in the California constitution, it has to be available to all couples, same sex or non).

This isn't about the "reading" of the law, IncandenzaH. Proposition 22 explicitly banned state recognition of gay marriage. This wasn't a case of a law being construed in an unconstitutional manner; the law itself was found to violate the state Constitution.

Revenent, perhaps my paraphrase was ham-handed and faulty, let's just read from the decision again:

"[O]ur task in this proceeding is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership, but instead only to determine whether the difference in official names of the relationships violates the California Constitution."

... and with that, I'm afraid I must rejoin the happy throngs in the real world. To those in California, don't worry: The folks in Massachusetts have had gay marriage for a while now, and the world didn't end. Buck up! It's just more happy people living proudly as married couples ... and what's so wrong with that?

That doesn't imply we should have a judicial dictatorship, since, guess what, sometimes judicial dictators are WRONG too. The question is what kind of SYSTEM generally gets the right answer most often and what kind of system is compatible with us not being slaves. IMHO, a ruling class of "wise lawyers" ain't it.

The people are wrong, therefore they must be corrected by their betters. It's clearly some folks' entire philosophy of governance

Well, not if the people are right!

The civil rights movement is the most telling example I can think of. It took the courts to get the ball rolling in eradicating segregation.

Yes, the end of segregation may have been inevitable, but why allow an injustice to continue when the power is there to stop it?

Just because something might be "inevitable" (i.e. voters warming to gay marriage) doesn't mean the rule of law shouldn't step in and intervene.

If the Unites States just waited around for injustices to be cured by the hypothetical inevitability of lazy voters who were ok with an episode or two of Will and Grace...one wonders what this place would look like.

Well the Babe is the exception that proves the rule. Most of the rest of the Sox are more trouble than they are worth. Steroids jerk offs like Roger Clemens, horse molesters like Wade Boggs, the only one that was worth a shit was Danny Cater because we could tradehim for Sparky Lyle.

Revenant, you wrote: "...the people would probably have voted the right way, eventually."

But in the meantime, the court had to decide on a constitutional issue regarding marriage, or more people's rights would have been abridged in the interim. They have now done so. Doesn't that mean the system works?

Actually there is that thing about the tyranny of the minority over the majority that is in play with this decision. And it means that the system doesn't work when you take peoples legitimate votes that said we don't want to recognize homosexual marriage as a matter of state law. Those opposed had the opportunity to vote it down, they lost handily in this case and yet 4 judges think they know better than the 7 million or so people that voted for Prop. 22 to render it moot. That is tyrannical in my view.

So now that they've completely pissed the electorate off, come November, I am completely confident that the electorate will give the middle finger to these black-robed ambulance chasers and to the rest of the velvet mafia and embed this law into the state constitution. Then let's see them overturn that.

By the way, I understand that the decision hinged on some obscure, deeply buried language in the CA Constitution that allowed these 4 human dish rags to overturn the will of the people. Does anyone know what this language is and where it is?

"But a bare majority of this court," Justice Baxter wrote, “not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the people themselves."

7M I liked this disent as well. It was the essence of Rev's comment above as well as mine “The principle of judicial restraint is a covenant between judges and the people from whom their power derives.… It is no answer to say that judges can break the covenant so long as they are enlightened or well-meaning.… If there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box.”

I find the discussion interesting above in that people who support gay marriage -- including this majority of judges -- want to find it in the Constitution. It's not there. It's not supported in the text.

The trouble with using constitutions to overturn legislation is that you can do it any time you want if you do not read constitutions strictly, as you would any other law.

Sometimes, of course, constitutions do support overturning existing law. Interracial marriage is a prime example. Furthermore, adding law, such as the multitude of federal and state law against discrimination, serves the same purpose much more effectively in a democracy and in a land of laws, not men.

Zachary -- Any first-year law student can point to several places in the modern federal Constitution that prohibits racial discrimination/

Please point us to the parts in said document that allow judges to define marriage over and above the legislature and the abject will of the majority. I am not familiar with California's constitution but the text of that document is obviously relevant and (more) appropriate here as well.

If you can't point to such text, and I'm betting you can't, please do us a favor and stop spouting your fascist garbage.

Had you stopped there, you would have been coherent and correct. If the state constitution does NOT define marriage what business is it of a court to define marriage based on constitutional provisions.

Seven, pathetic name-calling aside, the court apparently saw a fundamental right to marry in the state constitution, or they wouldn't have written the following in their decision today (emphasis mine):

"... properly interpreted, the *state constitutional right* to marry affords same-sex couples the same rights and benefits – accompanied by the same mutual responsibilities and obligations – as this constitutional right affords to opposite-sex couples."

'... Article XI, section 12 of the California Constitution of 1849 provided in this regard: “No contract of marriage, if otherwise duly made, shall be invalidated by want of conformity to the requirements of any religious sect.”'

Btw, there's this thing called "Google." Very easy to use. www.google.com. Type in what you're looking for & up those pesky facts will pop, so you won't feel so uninformed and powerless that you need to resort to name calling. Try it out!

Keep in mind that this was a finding under the California constitution, not the US Constitution. The California constitution differs from the US one in that the former explicitly bars gender and sexual orientation discrimination and the latter does not. Even if there were no "right to marry", marriage law as modified by Prop 22 probably wouldn't survive strict scrutiny, as there is no apparent compelling California state interest for keeping marriage heterosexual.

This doesn't strike me as a good example of justices legislating from the bench. It does, however, strike me as strategically ill-advised on the part of gay rights activists.

On the plus side, Governor Arnie came out against a constitutional amendment. Looks like he wasn't kidding about letting the court decide. Good for him (and shame on the legislature).

Revenent brings up an important point regarding the fact that we're talking about the California constitution, not the U.S. Constitution. It's very clever of the judges, because by basing their decision on California law, I think it pretty much keeps the prying hands of the U.S. Supreme Court off this decision? They can't reverse it. (If I'm wrong, please tell me... but it seems so.)

It probably keeps the SCOTUS out of it, but it also means that a California constitutional amendment can be used to slap down the court's ruling. That wouldn't be the case if the reasoning relied on the US constitution.

Andrew Sullivan has a good point regarding the courts getting ahead of public opinion when they need to do so:

"Ten years after the 1948 [Perez v Sharp anti-miscegenation law] ruling, Gallup fund [sic.] that 94 percent of white Americans opposed inter-racial marriage. As late as 1967, when Loving vs Virginia was decided, a majority opposed it. That remained the case through the 1970s. In fact, the Perez v Sharp ruling was fifty years ahead of public opinion."

Heck, when you read recent polling data, California is already ready for the gays to marry ... so one could posit that this court decision is actually 50 years late!

I think if you'll look at my post, I made a clear reference to California law. I understand federalism and I apologize that I wasn't clear.

Now, how about if the California supreme court finds a right to molest collies? Or a right to go to work and freebase? Must be constitutional, right? After all, five schmucks said so. That's how it works in a democratic republic.

As to the response about religious sects, what the fuck are you talking about? What does religion have to do with this case or this issue, so far as legality is concerned?

For the next two, I am a bit lost. I'm new to this gay-marry thingie after all, but then apparently, so are a lot of people -- so I feel validated that my (potential) lifestyle is at last being celebrated.

Since, as you might've guessed by my crushes on brunettes, I am fair, let choose two more dark-haired lovelies:

Peace, Seven. I only cited that California constitutional squib, because you implied the constitution did not include anything about marriage (hence, how could those horrible activist judges make a determination about constitutionality?). I was showing you another example that it does...

But while we're on the subject, I can make the argument that simply defining marriage as only between a man and a woman is indeed mandating a "conformity to the requirements of any religious sect."

(Well, a bunch, really...)

After all, it's generally not atheists sitting on the "no marriage for gays" bigotrain, now is it?

as there is no apparent compelling California state interest for keeping marriage heterosexual.

What compelling state interest would there be to keep marriage to only two people?

It's sad to see the courts behave in this way.

Maybe conservatives have been wrong all this time to to support principles of judicial restraint. Perhaps we should be supporting judges who would be willing to throw out stupid tax increases or government health care. We should start now.

"But I, and this court, must acknowledge that a majority of Californians hold a different view, and have explicitly said so by their vote. This court can overrule a vote of the people only if the Constitution compels us to do so. Here, the Constitution does not. Therefore, I must dissent."

I agree completely. The people should decide when they are ready for this. I think that should be today, but I may be in a minority so I don't get my way.

Now, how about if the California supreme court finds a right to molest collies? Or a right to go to work and freebase? Must be constitutional, right? After all, five schmucks said so. That's how it works in a democratic republic.

When the "dolphin wedding" or "group marriage" analogies start popping up, you know you've run out of arguments. Shall I run out to the store and pick up some more straws?

Sloanasaurus asked, "What compelling state interest would there be to keep marriage to only two people?"

Simply this: Since all marriage laws are based on two-person marriages, laws pertaining to marriage and divorce could not be adapted to include polygamous unions.

The same cannot be said for same-sex couples getting hitched. The state might have to change the wording on some forms they use (spouse for "wife" and "husband", for example), but the laws stay exactly the same.

In a perfect world, Incandenzah, I know. Isn't it strange, the Republicans who are so vehemently against big government and states' rights seem to really care about this little issue of marriage between two consenting adults.

You're not Swedish or Swedish-descended are you, DBQ? I only say this because I noticed with fright that 3 of my 5 gay-marry consorts were British. And I'm really not attracted to my fellow Brits in real life (Simon excepted).

But Ingrid. OH YES.

Beautiful and I believe, as rumour would have it, a lot of fun.

I read her autobiography. Great fun. A little selfish though.

I can't imagine being attracted to any of our current crop of vacuous twits.

Z, thanks for that. Off to bed, with mon homme, now. We live in NYC, which is not as enlightened as California or Massachusetts ... or even New Jersey, for that matter. But it's coming. Stay well... and to the rest of you: Relax. Breathe. If you stop obsessing about the gays falling in love and marrying, you won't even notice it's happening. And maybe that's best, for those with such an exquisite fragility that the very thought of gays marrying makes them quiver and quake and crack apart so. Bless 'em.

What compelling state interest would there be to keep marriage to only two people?

Maybe there isn't one, but a good candidate would be that our common law doesn't cover a whole range of issues relating to polygamy that don't come up in monogamous marriage, and thus the act of legally recognizing polygamy would place an undue burden on society.

FYI, y'all: Polygamy is only illegal as a civil matter. Islam gets around this little problem by only registering one wife. The rest are treated as "dependents".

I'm thinking of starting a new religion and performing religious wedding ceremonies which include sheep. Sheep lovers are clearly being discriminated against and something must be done.

As a first step, I'll be moving to CA soon and acquiring tax-free status. Shortly afterward will come the demonstrations on the San Fran mayor's lawn. See you there. Be sure to come early and get a premium poster on a stick and a megaphone. Feel free to bring your sheep and a pooper-scooper.

Since all marriage laws are based on two-person marriages, laws pertaining to marriage and divorce could not be adapted to include polygamous unions.

"Since all marriage laws are based on heterosexual marriages, laws pertaining to marriage and divorced could not be adapted to include homosexual unions."

I don't see much of a difference. A polygamous marriage would by default regard all partners are equal parts in the relationship and so require assets to be divided evenly (adjusted, as in done now, according to who has the best lawyer).

Not only do I not see the difference, I don't see why anyone objects. Well, no, in some cases I think the objection is political: I think gay activists don't care one way or another whether polyamory is recognized but they don't want anything to queer (heh) their shot at legitimization. And of course conservatives are hung up on that one-man, one-woman pairing.

But (some configurations of) polyamory at least might produce members of the next generation and a stable environment for them to be raised in, which was sorta the whole point in the first place.

A polygamous marriage would by default regard all partners are equal parts in the relationship and so require assets to be divided evenly (adjusted, as in done now, according to who has the best lawyer).

How is that "the default"? What law are you basing that on?

Shared assets in a marriage are based on the principle that both parties are entering into a contract together. But in polygamy, it is not necessarily the case that all the participants have mutual contracts. If Adam marries Betty, then marries Carla, why would Carla be entitled to any of Betty's communal property? Betty didn't marry Carla! That's like having to give your brother-in law a cut when you divorce his sister or something.

It gets even worse in more complicated polygamous relationships. Consider this scenario, wherein each person starts with $1000 in assets:

It is important for societies to encourage the binding of men and women together in marriage. In other words, to discriminate in favor of long term monogamous heterosexual relationships.

This is why we have marriage in the first place, throughout just about every one of the thousands of societies across all of history.

Were the ancient Greeks homophobes because they didn't have gay marriage?

I hope the people of California overturn this foolish short-sighted judicial tyranny.

And, just to make sure I've covered all the bases: We have big-brother programs for teenage boys without fathers because boys do better with male role models than without them. There's literally thousands of studies about the different contributions of mothers and fathers to sons and daughters. So it is also a good thing to discriminate in favor of heterosexual couples for adoption.

"It is important for societies to encourage the binding of men and women together in marriage. In other words, to discriminate in favor of long term monogamous heterosexual relationships."

And how exactly does allowing gay marriage discourage "the binding of men and women together in marriage"? It's not like all the gay people in CA before this decision thought to themselves "Oh shucks, since they won't allow me to marry my partner, guess I'm just gonna have to give in and marry a girl!"

And since we all want to "discriminate in favor of long-term monogamous heterosexual relationships," we might as well ban divorce as well. Divorce certainly doesn't serve your "important interest."

So a man in a robe has the power to tell the 4,618,673 California voters (a supermajority of over 60%) who passed Proposition 22 that their votes don't count.

When Robert Mugabe nullifies an election in Zimbabwe, we cry out in pious indignation. But when it happens here, our tyrants are toasted as enlightened liberators. If the people didn't want this to happen, they shouldn't have voted "wrong".

In a sane world, judges such as these would be immediately removed from office for gross incompetence and corruption. Their abuse of power would be regarded as disgraceful; the stuff of dictatorships. Instead, creeping tyranny is celebrated as a normal part of the political process. The voters don't run the show; the voters are merely an obstacle.

That some couples cannot sustain a marriage, or that some people cannot enter into a long-term heterosexual relationship does not contradict the importance of both. We don't make divorce illegal, but we do make it hard, precisely because it is harmful to others outside of the divorcing couple- namely the children, and those who have a vested interest in the institution of marriage, a.k.a., everyone collectively.

As far as the 'how does it hurt straight couples for gay couples to marry' question, which has been asked over and over again and has been answered as many times as asked, here is one answer: When you teach a lie, you subvert the truth. That marriage is important, that mothers are important, that fathers are important. Fewer people get married when it's not deemed important to do so. Fewer fathers- and, perhaps to a somewhat lesser extent, mothers- stay around when it's not deemed important to do so. In other words, the future generations pay.

Well, people don't need to get married when there are civil unions. If you want to strengthen the institution of marriage, perhaps you should advocate instead for the dissolution of civil unions, and for banning domestic partner benefits.

Of the approx. 30 children of gay parents whom I have worked with so far, none have expressed concerns over how s/he came into being (e.g. sperm donation) or over the parents' gender and sexual orientations. These issues don't exist until the children begin to suffer bullying and bigotry at school.

It's a bunch of baloney that gay marriage teaches children "lies" (Andrew) about the importance of marriage and committed partnerships. The only lie we can teach children on this issue is that their parents are not worthy of the rights and responsibilities of other couples whose marriages are approved -- encouraged even -- by the state.

Up until today, the law was clear that gays couldn't marry. Now that the CSSC has said that gays can marry, what is to stop them from declaring that bigamy laws are unconstitutional, or that relatives can marry? It certainly isn't the voters.

Hypothetical questions can sometimes become a bit ridiculous. I don't know California law(or any other state's, truth be told) but isn't there an impeachment process for judges there? What if a court were to rule that laws against murder were unconstitutional? Judges can be removed. A few years ago "Impeach Earl Warren" bumper stickers were all over the place. Not that it did their cause any good.

The opponents of same sex marriage should attempt an impeachment process and if the outrage is strong enough to make such an action bear fruit perhaps they will receive a decision more to their liking in the future. The question of gay marriage is bound to come before the SCOTUS sometime in the future and in that case my guess is that gay marriage opponents will be in the same boat as the anti-abortion folks. Nothing less than a constitutional amendment process will ever get them what they want.

Then again, sometimes they can be right on the money. When the California constitution was amended to bar sexual orientation discrimination, critics asked if this wouldn't force the legal recognition of gay marriage. They were told to stop asking ridiculous hypothetical questions.

Hypothetical question or not, it is a question that should be honestly answered: if the constitution mandates recognition of gay marriage, why doesn't it mandate the recognition of other forms of marriage that people consider offensive? "Don't be ridiculous" is not an honest answer.

Seven, you've really got it in for Zachary, don't you? [sigh] Is this the "argument" you want a response to?

"Now, how about if the California supreme court finds a right to molest collies? Or a right to go to work and freebase? Must be constitutional, right? After all, five schmucks said so. That's how it works in a democratic republic."

Since Zachary is obviously off this thread, I'll answer for him (I'm sure he won't mind). The answer to your "argument" (as you call it) is "yes." If the Supreme Court of California finds any of those things to be constitutionally protected, then laws about them would indeed be removed from the books... and, yes, that IS how it works in a *constitutional* democracy, which is what we have here in the U.S. Love it or leave it.

I think in traditional polygamy, it's A marries B, A marries C, A marries D, etc. That would hardly conform to our fundamental right to form familial relationships, however.

But even in the complex forms--because we are talking about marriage, here, where a man and a w--where 2 pe--where n people become one, the answer is that any person is entitled to the total assets of the group divided by the number of people in that group.

$/n

In your "complex" case, a person leaves the group with $1000, just what they entered with. It can get more complicated, of course, but so can any divorce.

It ain't nearly as complex as dealing with children.

Your problem is that you're thinking of the married person marrying another person as a free agent, but if a man marries a woman and she runs up a credit bill without his knowledge, he still gots to pay. Even though HE didn't do it--didn't even know about it!

Part of the deal with marriage is the financial responsibility for the other. That would have to include their tendency to enter into costly relationships, such as other marriages.

The fact that we're responsible (at some level) for our spouses is part of what marriage is.

That's why married people get so many fabulous perks from society.

Besides, any complexity--and I maintain children are the greatest complexity, and hetero couples mess that up all the time--pales in the face of that fundamental right to form relationships, as found by the California State supreme court (pbut).

Revenent, what other types of "offensive" marriages are you asking about here? Polygamy has been asked/answered a few times above (once by YOU, in fact... last night, if you recall)... incestuous relationships are already against the law, though I don't think there are a huge number of incestuous couples trying to change the law at this point (could be wrong). Any other "offensive" marriage paradigms flitting around that brain of yours, just let me know. But to be honest, you're right: If a court found that not being allowed to marry a kangaroo (just as an example) was unconstitutional, they would find so & any laws that were in place that disallowed marrying kangaroos would be null/void.

By the way, I checked the Law Books and there are no laws in place that specifically enjoin you from marrying a kangaroo. Though I bet you'd be hard pressed to find a kangaroo (or even a wallaby) that could sign his/her name to a marriage license.

As I've written, the question is not "How does gay marriage harm straights?" but "How does gay marriage serve society?"

As andrew pointed out, there is a purpose to marriage and it has nothing to do with personal happiness. It has to do with perpetuation of society.

Can gays do this? If we count for adoption, in vitro, etc., sure.

It makes a stronger argument to say that marriage should not be given any special recognition, or that only a particular type of marriage (one that has produced children and maintained a stable domestic environment) should be given special recognition.

Society doesn't care if you're happy, it only cares if you produce a functional next generation.

Blake, my next door neighbors have twin babies (a boy and a girl). The parents are both women. Their marriage (were it legal here in Sodom) would indeed serve society, as it would put in place certain familial and financial protections for the children, who we hope will grow up to be productive members of society. I guess the same is true for my friends Mike and Rob in LA... they also have twins. (Btw, what is it w/ gays and babies... so many TWINS... maybe making up for lost time?).

I'm not generally a won't-somebody-think-of-the-children guy, but this is one issue where they are, literally, the point. I think it's offensive to say that a gay couple couldn't be good parents, but at the same time I think the stats bear out that it's sub-optimal. (But then, how many hetero arrangements fall into that same category?)

Given that society has given up its biggest clubs in enforcing the marriage contract, what do we do to ensure the next generation? Not just making them, which seems to be a minor problem, but raising them?

Blake, please cite sources for those "stats" you mention. I have yet to see a peer-reviewed study that shows anything "sub-optimal" about how gays parent, or how the children parented by gay parents are harmed (more or less) than those parented by straight people. But if you know something specific that I might not have seen, please put it up, so we can all learn something. Thanks.

Re. Twins -- yep, all these twins I mention are the result of in-vitro fertilization... the same process used by many (many!) heterosexual married people... and singles, too.

I may have pulled that out of the "ass file". I was thinking in terms of single parenting, not same-sex parents. Don't have anything at my fingertips anyway, and don't have time to research right now, so I retract.

I asked you to explain the legal basis for the split, not to offer your opinion on how it would be done.

You think that C should receive $3000 from B, despite B never having consented to marriage with C. What's the legal justification for that?

But even in the complex forms--because we are talking about marriage, here, where a man and a w--where 2 pe--where n people become one, the answer is that any person is entitled to the total assets of the group divided by the number of people in that group.

But is the number of people involved in the marriage between A and C three -- or two? Remember, B and C never got married (nor do they get married in "traditional" polygamy.

In the more complex situation the justification for dividing the assets N ways is even weaker. Take my previous scenario:

Now, suppose that instead of bringing in the standard $1000 in assets, G brings in $71,000. Then E divorces G. G leaves the marriage, according to you, with $11,000. Rather than departing with the $36,000 he would normally get under no-fault divorce, he loses and extra $25,000 -- despite only having entered into ONE marriage contract!

Conversely, suppose A divorces C. A waltzes off with $10,000 more than he brought to the marriage -- and $9000 more than he AND C collectively brought to their marriage. That money's coming out of G's pocket, despite the fact that A and G aren't married. G isn't even married to a person who is married to G. He's married to a person who is married to a person who is married to G.

If you think our lengthy common law history of marriage and divorce law covers this material, I'd love to hear how!

Your problem is that you're thinking of the married person marrying another person as a free agent, but if a man marries a woman and she runs up a credit bill without his knowledge, he still gots to pay. Even though HE didn't do it--didn't even know about it!

That's not a valid metaphor; debt is not the same as division of assets. Also, even debt isn't necessarily transferable. If you run up massive credit card debts and I divorce you, the credit card companies can't come after me. They can only come after me if I'm on the same account.

Revenent, what other types of "offensive" marriages are you asking about here? Polygamy has been asked/answered a few times above (once by YOU, in fact...

Yes, but I offered a legitimate argument why a polygamy ban *might* survive strict scrutiny. Dismissing the concern as "ridiculous" was not a legitimate argument. I could be wrong, after all, and if there isn't a compelling government interest for keeping polygamy illegal then it is easy to see a court overturning the law (especially in the interest of "cultural sensitivity", i.e. sucking up to Muslim immigrants).

incestuous relationships are already against the law

Assuming the law banning it is constitutionally valid -- and under Lawrence v. Texas it pretty clearly isn't, at least where adults in non-reproductive couples are concerned. That case found a 14th amendment right to consensual sexual intimacy, barring a legitimate state interest in forbidding it. What is the legitimate state interest in, for example, forbidding two brothers in their 30s from having sex?

though I don't think there are a huge number of incestuous couples trying to change the law at this point (could be wrong)

It would take exactly one couple willing to file the court case, plus a narrow majority of one panel of California Supreme Court judges willing to rule based on established precedent rather than gut feelings of ickiness. That is, by my count, a grand total of six people (or 0.00002% of the state's population), only two of whom have to think incest is a good idea.

So, yes, if people want to argue that it is ridiculous to think that incest might be legally recognized by judicial fiat, I'd like to see them explain why.

Revenant, I agree with you that incestuous marriages could indeed be rendered legal by judicial fiat. And I'll play right into your hands (I think) by saying, "so what?"

Maybe I have my own prejudices about incest (the way others have a prejudice against homosexuality) aren't based on anything but that "icky" feeling I have about it. But I guess, if two related people get married, it really doesn't affect me all that much. If there's a reason I'm not thinking of that is proven to affect me personally (or society in general) adversely, then I hope the courts would take that into account & rule accordingly.

But getting back to the actual topic (gay marriage, that is), so far I haven't heard a cogent argument about exactly why some people on this thread believe letting the gays get married would somehow harm society. Nor did the California legislature, or its Supreme Court, for that matter. Thoughts?

Are you talking to me? Because the example I used was two thirty-year-old brothers. You might not be aware of "this junior high-level fact", but men can't get each other pregnant. Neither could two sisters, or a mother and daughter, or a father and son.

Even with hetero incest, there is always surgical sterilization. That removes the risk of children with birth defects.

"First, inbreeding does not directly lead to congenital birth defects per se...."

The article goes on to posit this, though, which is interesting:

"The third reason is that without an incest taboo, sexual rivalry among family members would disrupt the normal roles and attitudes of the various relatives.... Faced with constant conflict and tension, the family institution might simply disintegrate."

Hopa! - We now have a solid (if arguable) reason for legislating against incest and incestuous marriage. (But sorry, Seven, it's not about birth defects, apparently).